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NATIONAL EXPANSION UNDER 
THE CONSTITUTION 



OR 



Despotic Power versus Delegated 
Authority 



EDWIN BURRITT SMITH 

OF THE CHICAGO BAR 



(address in reply to congressman MANN, SUNSET CLUB, 
CHICAGO, OCT. 27, 1898, REVISED) 



" In vain we call old notions fudge. 

And bend our conscience to our dealing; 
The ten commandments will not budge. 
And stealing will continue stealing." 



—LOWELL 



The Union, under the leadership of Abraham Lincoln, 
ceased to be divided. Shall we voluntarily again divide it? 
Shall we /Permit despotic power to be set up at Washington, 
there to compete with delegated authority for final supremacy? 



CHICAGO 

R. R. DONNELLEY & SONS COMPANY 

1898 



NATIONAL EXPANSION UNDER 
THE CONSTITUTION 



OR 



Despotic Power versus Delegated 
Authority 



EDWIN BURRITT SMITH 

OF THE CHICAGO BAR 



(ADDRESS IN REPLY TO CONGRESSMAN MANN, SUNSET CLUB, 
CHICAGO, OCT. 27, 1898, REVISED) 



"/« vain we call old notions fudge, 

And bend our conscience to our deali/tg ; 
The ten coinmandvteiits ivill not budge. 
And stealing will continue stealing." 



—LOWELL 



The Union, under the leadership 0/ Abraham Lincoln, 
ceased to be divided. Shall we voluniarily as^ain divide it? 
Shall we fermit despotic power to be set up at Washington, 
there to compete with delegated authority for final supremacy? 



CHICAGO 
R. R. DONNELLEY & SONS COMPANY 
i8qS . , •. 






" IVf the people of the United States, in order to form a more perfect 
Union, establish justice, insure domestic tranquility, provide for the com- 
mon defense, promote the general welfare, and secure the blessings of 
liberty to ourselves and our posterity, do ordain and establish this Con- 
stitution of the United States of America." — Preamble. 



" All />ersons born or naturalized in the United States, and subject to 
the jurisdiction thereof, are citizens of the United States and of the State 
wherein they reside." — Fourteenth Amendment. 



" // was in the oath I took that I would, to the best of my ability, pre- 
serve, protect, and defend the Constitution of the United States. • • • N'or 
was it my view that I tnight take an oath to get power, and break the 
oath in using that power. * * * I did understand * * * that my oath 
imposed upon me the duty of presertting, to the best of tny ability, by 
e-iery indispensable means, that government, that nation, of which the 
Constitution was the organic law." — Lincoln. 



" The late M. Guizot once asked me how long I thought our republic 
would endure ? I replied: ' So long as the ideas of the men who founded 
it cotitinue dominant,' and he assented." — Lowell. 



National expansion itivolves "a greater danger than we have en- 
countered since the Pilgrims landed at Plymouth — the danger that ue are 
to be transformed from a republic, founded on the Declaration of Inde- 
pendence, guided by the counsels of Washington, into a vulgar, common 
place empire, founded upon physical force." — Senator Hoar. 



P. 



NATIONAL EXPANSION UNDER THE 
CONSTITUTION 



The new policy of national expansion, into which we 
are drifting, calls for a re-examination of the essential 
conditions of free government. What will our new 
possessions do with us, not what shall we do with 
them? is, as Bishop Potter suggests, the real question. 
Our institutions rest upon the proposition that govern- 
ments derive their just powers from the consent of 
the governed. This consent means more than mere 
acquiescence. It contemplates the active parpticipa- 
tion by the governed in a government whicn is their 
own and which they alone control. Our governments, 
local, state and national, exercise only such authority 
as is conferred upon them by the people. None of 
them claims or exercises original or arbitrary power. 
All, as the agents of the governed, execute none but 
delegated authority. 

The President and the Congress of the United 
States must govern all new acquisitions of territory 
under and by virtue of the Constitution, or by self- 
assumed and arbitrary power. The Constitution cre- 
ated a nation of States, "an indissoluble Union of inde- 
structible States." It called into being a United 
States of America, not a United States of America and 
Asia. Every person born or naturalized within its 
borders was to be a citizen of the nation and of the 
State of his residence. All the people of the nation 

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National Expansion under the Constitution 

were to constitute a brotherhood of citizens having 
equal rights before the law, which might not be denied 
or abridged because of race or color. There were to 
be no subjects, but only citizens. Congress might or- 
ganize territorial governments for the administration of 
the sparsely settled national domain outside the States; 
but the territorial form of government was to be but 
temporary and merely preparatory to statehood. 
Such was our noble scheme of popular government; 
such was our splendid vision; and until now there has 
been no desire among us to have it otherwise. 

The power to acquire new territory has long since 
ceased to be a subject of controversy; but all our 
acquisitions heretofore made in its exercise have been 
of contiguous and unoccupied or but sparsely settled 
territory. Our people have rushed into these empty 
spaces and planted there our institutions without let or 
hindrance. The widely assumed analogy between 
such acquisitions and those now proposed of distant 
islands, already occupied by half-civilized races of 
different languages and institutions and having a cli- 
mate in which white men cannot or will not live, is 
purely fantastic. The precedent of our earlier acqui- 
sitions has already been greatly overworked as a justi- 
fication for a policy which is in fact entirely novel. If 
this is not so, and the proposed acquisition of the Phil- 
ippines is but an incident of an accepted national 
policy, it follows that these islands are to be acquired 
and promptly admitted to statehood, as all our prior 
acquisitions of sufficient population have been; or at 
least that they shall be given temporary territorial 
governments j)rejjaratory to their early admission as 
States. 

The power to acquire territory being admitted, 
whether it shall now be exercised — especially in the 

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National Expansion under the Constitution 



case of the Philippines — is for Americans the gravest 
question of our time. Can these islands be acquired 
without their becoming the property, the territory, of 
the United States? If such territory, they will at once 
be subject to the Constitution and general laws of the 
United States. The moment new territory is incor- 
porated into the national domain its inhabitants be- 
come citizens of the Unted States, and as such "en- 
titled to all privileges and immunities of citizens in the 
several States." The Supreme Court has held that 
"the provisions of the Constitution relating to trials 
by jury for crimes and to criminal prosecutions apply 
to the territories of the United States";* that Congress 
in legislating for the Territories and District of 
Columbia is subject to those fundamental limitations 
in favor of personal rights which are formulated in 
the Constitution and its amendments;t and that all 
citizens of the United States have "the right to come 
to the seat of government," to have "free access to its 
seaports," and to pass freely from one part of the 
country to every other part.;}: The Supreme Court has 
also, as late as March last, held that under the four- 
teenth amendment, which provides that "all persons 
born or naturalized in the United States, and subject 
to the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside," Ameri- 
can born Chinamen of alien parentage are citizens and 
free from the provisions of the exclusion treaties and 
acts; also that Congress has no authority "to restrict 
the effect of birth, declared by the Constitution to con- 
stitute a sufficient and complete right to citizenship."! 

♦Thompson vs. Utah, 170 U. S. 343, 346. 

fThe .\nierican Publishing Society vs. Fisher, 166 U. S. 464. 466. 

tCrandall vs. Nevada, 6 Wall., 35. 

II United States vs. Wong Kim .^rk, 169 U. S., 649, 70;. 

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National Expansion under the Constitution 

The inhabitants of annexed territory become citi- 
zens of the United States and of the several States 
without naturalization. This rule of international law- 
has always been accepted by us without question until 
this year. The attempt by Congress to prevent its 
application to Hawaii will fail. To sustain it, the 
Supreme Court must hold that Congress may acquire 
territory conditioned that it shall not be subject to the 
Constitution; that it may determine whether acquired 
territorv shall be its private possession or the property' 
of the United States; in a word, that it may in its dis- 
cretion assume and exercise arbitrary power. 

The constitutional power of Congress to "make all 
needful rules and regulations respecting the territory 
or other property of the United States" thus appears 
to have important limitations. The few national 
expansionists who seem to have considered how we 
shall govern remote islands inhabited by mixed and 
half-civilized races, have too lightly assumed that the 
power of Congress to make such rules and regulations 
is sufficient warrant for any kind of administration 
whatever. The truth is that the bill of rights must be 
applied to all the territory of the United States. The 
mere acquisition of territory renders it subject to the 
Constitution and general laws of the United States. 
To realize something of what this means, imagine the 
administration of the criminal code among the halt-civ- 
ilized and savage races of the Philipj)ines bv the com- 
plex methods prescribed by the fifth and sixth amend- 
ments. 

The attempt to impose free institutions from with- 
out upon half-civilized and even savage races in a 
remote part of the world is, however, by no means 
the worst feature of tiie Quixotic adventure upon which 
we arc askctl to enter. The Constitution of the United 



National Expansion under the Constitution 

States also povides 'Cc\2X^^ all duties, imports and excises 
shall be uniform throughout the United States.'' If these 
islands, under whatever form of administration, come 
under the civil authority of the United States, there- 
upon our tariff and revenue laws, ipso facto, apply to 
them. It is beyond the power of Congress to exempt 
any territory of the United States from the operation 
of this plain constitutional provision. It follows that 
unless we greatly modify our tariff, our mere assump- 
tion of civil jurisdiction over these islands will impose 
upon them the anti(juated colonial system of taxation 
from which we revolted in 1776, and to rescue them 
from which we have just broken the peace of the 
world. Thus grossly to discriminate in favor of our 
own manufacturers will not only impose intolerable 
burdens upon the islanders, but certainly lead us 
directly into trouble with other commercial nations, 
whose merchants should have the right to trade with 
these people upon the same terms as our own. 

This, however, is not all that this dangerous policy 
involves. We have seen that the inhabitants of our 
proposed acquisitions will at once become citizens of 
the United States, and have all the immunities of citi- 
zenship in every part of our country. It is reported 
that from one-fourth to one-third of the present 
inhabitants of Luzon are Chinamen. The other ele- 
ments of its population are even less desirable as citi- 
zens. We have now for some years, for reasons some 
of which are generally regarded sufficient, prohibited 
further Chinese immigration. If the Chinam.en of the 
Philippines and their other inhabitants become citizens 
by reason of their acquisition by us, we can no longer 
legally prohibit them from coming here. If this were 
all, we might at least limit the possible invasion to 
those who are the present inhabitants of the islands 

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National Expansion under the Constitution 

and to their descendants. It is, however, one thing to 
protect our present territory from the immigration of 
the yellow peoples of the East. It would be quite 
another for us arbitrarily to take possession of a great 
archipelago in that region and exclude from it the 
peoples of its own neighborhood. Indeed, those who 
really desire the annexation of the Philipjjines, profess 
a great desire to make these islands a gateway through 
which we may secure the Chinese trade. If it is to be 
a gateway at all, the gate will swing both ways, and 
through it will come to us as our fellow-citi/xns of the 
republic untold numbers of men who are and must 
long remain wholly unfit for self-government. 

Those who hold that fatalism in the form of "duty 
determines destiny," and that destiny itself is an affair 
of the heart rather than of the head, lightly reply to 
all this that they have proposed no such annexation as 
will make these islands subject to the Constitution and 
general laws of the United States. They assume, 
without shadow of authority, that Congress may deal 
with such acquisitions free from all constitutional 
restraints. This seems to be the view at Washington. 
It is even reported that the President will recommend 
to Congress the appointment of a commission to 
recommend a plan of insular taxation, both local and 
general. No commission is needed to point out the 
constitutional requirement that "all duties, imposts and 
excises shall be uniform throughout the United States." 

The cool assumption that Congress may itself 
acquire and hold new territory conditioned that it 
shall not be subject to the Constitution and general 
laws of the United States, is the most dangerous 
development of the expansion craze through which we 
are j)assing. It means in ])lain language that there 
are those among us who, for the moment at least, are 

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National Expansion under the Constitution 



prepared to discredit and even abandon representative 
government. Thus far it has been our greatest glory 
that ours is a government of laws, not a government 
of men. Presidents and Congresses have exercised 
only delegated powers. They have ruled as the serv- 
ants and with the consent and co-operation of the 
people. It is now proposed that in addition to their 
duties as public servants, they shall take on other 
duties of an entirely different character; that they shall 
exercise a self-assumed, arbitrary and uncontrolled 
authority over distant and subject peoples. If this 
extraordinary program can be carried out, we shall see 
the President and Congress daily exercising from 
Washington both delegated and self-assumed powers. 
At one moment they will act as the duly authorized 
servants of a free people, and the next as despotic 
rulers of subject races. Their authority over us will 
remain at least in name expressl}^ delegated. Their 
authority over their remote subjects will remain self- 
assumed and unrestrained. 

It is a law of physics that two bodies cannot occupy 
the same space at the same time. Abraham Lincoln 
but declared the application of this law to the realm 
of politics when he declared that "this government 
cannot endure permanently half slave and half free." 
Under his great leadership his prediction that the 
Union would cease to be divided was gloriously ful- 
filled. The question for our generation is whether we 
shall voluntarily again divide it; whether we shall per- 
mit to be set up at the seat of government despotic 
power to compete with representative authority for 
final supremacy. 

We may well inquire, as bearing on what shall be 
the line of demarcation between the constitutional 
authoritv of Congress and the arbitrary power which 



National Expansion under the Constitution 

it may asssume, by what warrant has the present Con- 
gress levied enormous taxes, borrowed immense sums 
of money and called some two hundred and fifty thou- 
sand men from productive occupations and subjected 
them to the physical danger and moral contamination 
of the camp? Such warrant must be sought in the self- 
assumed power of Congress, as it nowhere expressly 
appears in the Constitution. The purpose of that 
instrument was "to form a more perfect [not a less 
perfect] union, to establish justice, insure domestic 
tranquillity, provide for the common defense, jjromote 
the general welfare, and secure the blessings of liberty 
to ourselves and our posterity." There is nothing 
here which contemplates the government of subject 
races or control of territory which is not within the 
Union. The Constitution confers upon Congress 
"power to lay and collect taxes, duties, imposts and 
excises, to pay the debts and provide for the common 
defense." It further provides for a militia "to exe- 
cute the laws of the Union, suppress insurrections and 
repeal invasions." We shall look in vain in these 
provisions of our fundamental law for authoritv to 
wage aggressive war for the acquisition of territory. 
The truth is that this new variety of territorial exj^an- 
sion calls for an unconstitutional expansion of the 
powers of Congress. 

We may, however, dismiss the fantastic assumption 
that Congress may acquire and govern territory which 
shall not be subject to the Constitution and general 
laws of the United States. The Supreme Court has 
said: "It cannot be admitted that the king of Spain 
could, by treaty or otherwise, impart to the United 
States any of his roj'al prerogatives; and much less 
can it be admitted that they have capacity to receive 
or power to exercise them. Every nation acquiring 

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National Expansion under the Constitution 

territory, by treaty or otherwise, must hold it subject 
to the Constitution and laws of its own government."* 

We may rest assured that all islands to which our 
civil authority shall be extended will become subject 
to our Constitution and general laws; that their inhab- 
itants will become citizens of the United States and of 
the several States in which they may choose to reside; 
that as such citizens they will come and go at will 
throughout the entire country; that their government 
by Congress must be subject to the fundamental limi- 
tations in favor of personal rights which are formulated 
in the Constitution and its amendments; that by our 
high tariffs we shall continue to grind their people into 
the dust as Spain has done before us; and that our 
dream of imperialism will saddle upon us awful bur- 
dens and finally lead us we know not whither. It is 
for this we are asked to return to militarism, with its 
grievous burdens and sordid ideals. It is for this we 
are to surrender our splendid and unique position. It 
is for such a mess of pottage we are to exchange our 
noble birthright. In our desire to save Cuba and the 
Philippines from excessive taxation we are to take it 
upon ourselves in perpetuity. In a vain effort to 
share our institutions with half-civilized men we are 
to destroy their character. 

Those among us who have so suddenly awakened 
to what they are pleased to call our national "isola- 
tion," exhibit a growing impatience with the counsels 
of the fathers. They even lightly refer to them as 
puritanical and timid old souls, whose advice was well 
enough for a boy. They have just discovered that the 
nation has become a giant, who "is no longer content 
with the nursery rhymes which were sung around his 

* Pollard x-s. Hagan, 3 How. 312. 



National Expansion under the Constitution 

cradle."* They are especially certain that the Fare- 
well Address is outgrown, and is no longer of value 
to a nation that has suddenly become a "World 
Power," and that even the Monroe Doctrine has be- 
come somewhat shopworn, or at least of but one-sided 
application. Yet the counsels of the fathers were not 
born of weakness or fear. The policy of non-inter- 
ference by us in the affairs of Europe was early 
announced in the face of the pressing demands of 
France that we redeem the supjjosed obligations grow- 
ing out of her assistance in our revolt against Eng- 
land. That of non-intervention by European powers on 
this continent was suddenly proclaimed in 1823 by 
a nation of less than twelve million souls in opposition 
to the "Holy Alliance," which had been organized by 
the emperors of Russia and Austria and the king of 
Prussia to conserve and maintain absolutism in P^urope 
and over all lands claimed bv European powers. The 
policies thus announced were believed by their authors 
to be of permanent application. It is, of course, pos- 
sible that Washington was mistaken, but his counsels 
if wise are for all time. His solemn admonitions were 
not for temj)orarv jnirposes. They ring in our ears 
to-day with the added weight of a century of success- 
ful a])j)lication. 

"Observe good faith and justice toward all nations. 
Cultivate peace and harmony with all. . . . 'Tis 
our true policy to steer clear of permanent alliances 
with any j)ortion of the foreign world. . . . Har- 
mony, liberal intcrcouse with all nations arc recom- 
mended by policy, humanity and interest." Again: 
"The great rule of conduct for us in regard to foreign 
nations is, in extending our commercial relations, to 

♦President Northrup, University of Minnesota, at Chicago Peace Jubilee 
banquet. 



National Expansion under the Constitution 

have with them as little political connection as pos- 
sible." 

These are not the words of transient wisdom or 
temporary expediency. Only what Washin<^ton and 
Hamilton expected has happened in America. We 
have merely reached the position which they clearly 
foresaw, "when we may defy material injury from 
external annoyance; when we may take such an atti- 
tude as will cause the neutrality we may at any time 
resolve upon to be scrupulously respected; when 
belligerent nations, under the impossibility of making 
acquisitions upon us, will not lightly hazard the giving 
us provocation; when we may choose peace or war as 
our interest, aided by our justice, shall counsel. Why 
forego the advantages of so peculiar a situation? 
Why quit our own to stand upon foreign ground? 
Shall we dash to the ground their splendid vision of a 
national life that shall lead the world to higher things 
by a spectacle of peace, liberty and prosperity? Shall 
we adopt a policy that will mark a complete departure 
from our well-considered course for a century, and 
convert a nation whose chief glory it has been to 
achieve a position to command permanent peace — the 
opportunity for the steady pursuit by an entire people 
of their chosen occupations — over a vast area, into a 
high priest of militarism? Taxation without represen- 
tation is still tyranny. Government by force is still 
despotism. 

This intolerance of the counsels of the father has 
led directly to ill-concealed contempt for our past 
and indifference to our present. Our great questions 
of administrative and monetary reform have suddenly 
become "parochial." The business of a mighty nation 
has as suddenly become "artificial and transient." 
Our people are called to abandon "the treadmill round 

13 



National Expansion under the Constitution 

of domestic politics" for "new thoughts, new ques- 
tions, new fields, fresh hopes, broader views, wider 
influences."* They are asked to surrender the work 
of self-government to behold the inauguration of des- 
potic jjower at Washington. To encourage their 
support of this new departure at the pending Congres- 
sional elections, party managers are everywhere 
promising "the boys" additional spoils. These prom- 
ises are to be kept by an early "revision" of the civil 
service rules, which shall break the solemn promises 
of a great party and its leader, thoroughly and hon- 
estly to enforce and extend wherever practicable the 
civil service law, and to take no step backward in the 
cause of a vital reform. 

And even this is not all. The growing contempt 
for the counsels of the fathers extends to the Consti- 
tution itself. This was inevitable. Those counsels, 
including the Farewell Address, were in fact but pop- 
ular expositions of the fundamental principles of the 
Constitution. It and they must stand or fall together. 
It is now said that "a Constitution and national policy 
adopted by thirteen half-consolidated, weak, rescued 
colonics, glad to be able to call their life their own, 
cannot be cxj^ected to hamper the greatest nation in 
the world."* It is even assumed that the ambiguous 
cheers of poj)ular gatherings at railroad stations to greet 
the President while on a j)olitical })ilgrimagc, constitute 
a sufficient warrant for a vital change in the character 
of the government. 

The suggestion that the Constitution be amended 
is imj)racticablc. But if not, are we readv to surrender 
or even inij^air the bill of rights? Are we so soon 
prepared to limit the universal citizenship of the four- 
teenth amendment? Shall we give Congress j)owcr in 

* .Mtorney-General Griggs. 

14 



National Expansion under the Constitution 

its discretion to suspend the writ of habeas corpus in 
time of peace, to deprive citizens of personal liberty 
without conviction for crime by arbitrary confinement 
in certain places, to say in what parts of the United 
States imposts, duties and excises shall be uniform? 
In a word, shall Congress be given discretionary power 
to make the application of the Constitution and laws 
of the United States general or special? These ques- 
tions are fundamental if free government is to continue. 
The supremacy of the Constitution must be preserved 
unless ours is to become a government of men instead 
of a government of laws. 

It is in strict accord with a policy so revolutionary 
that no hint of it is to be found in the Republican 
platform of 1896. There it is merely declared that 
"all our interests in the Western Hemisphere" should 
be "carefully watched and guarded;" that "the 
Hawaiian Islands should be controlled by the United 
States, and no foreign power should be permitted to 
interfere with them;" that, as to the Cubans, "our best 
hopes go out for the full success of their determined 
contest for liberty;" and that "the government of 
the United States should actively use its influence and 
good offices to restore peace and give independence to 
the island." The use of power thus obtained to com- 
mit the country to a revolutionary policy is itself a 
gross betrayal of representative government. 

It is solemnly urged in high places that we have no 
choice in this matter, that the unauthorized action of 
our public officials is in direct obedience to the Divine 
will. It is novel doctrine that public servants may 
substitute what they guess to be the will of God for 
the Constitution and laws of the land. There is none 
so exalted but that his whole public duty will be per- 

* Franklin McVeagh in Chicago Times-Herald. 

15 



National Expansion under the Constitution 

formed by a strict observance of his official oath to 
"preserve, protect and defend the Constitution of the 
United States," leaving it to those who make constitu- 
tions to determine how far they shall express finite 
conceptions of the infinite purpose. 

These are but the first fruits of "imperialism" in 
the United States. They are quite sufficient to give 
promise of an abundant harvest. If the President and 
Congress are hereafter to reign over subject races in 
the exercise of des[)otic power, it is fitting that they 
should assume such j)ower without pretense of dele- 
gated authority. But it cannot, must not be. Our 
people will not long permit the American flag to wave 
over "lesser breeds without the law." "Subjects" and 
"subject peoples" are impossible words in the lexicon 
of free government. All the territory of the United 
States must become self-governing States. All its 
people must be "citizens of the United States and of 
the states wherein they reside." All territory that may 
not become States, every people who may not become 
citizens, must be left without the Union. Peoples so 
incompetent for self-government as to require to be 
ruled by despotic power from without must be left to 
the 0{)pression of others. Only bv strict adherence to 
the American doctrine of an all inclusive citizenship 
of a Union of States can we work out our real destiny. 
All duties beyond this are not national but individual. 
It is for us as a nation to remain dedicated to our great 
task, "that government of the })coplc. bv the people, 
for the people, shall not perish froni the earth." 



16 



V:^"!,":^: '" ^^NUKt:.^ 



013 717 895 3 




